Houston v. Warren

Filing 12

ORDER Conditionally Granting 1 Petition for Writ of Habeas Corpus filed by Irene Houston. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IRENE HOUSTON,
Petitioner,

Civil No. 2:13-CV-13886
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
ANTHONY STEWART,

Respondent.
____________________________________/
OPINION AND ORDER CONDITIONALLY GRANTING
THE PETITION FOR A WRIT OF HABEAS CORPUS
Irene Renee Houston, (“Petitioner”), incarcerated at the Women’s Huron
Valley Correctional Facility, in Ypsilanti, Michigan, filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, challenging her conviction for
embezzlement of $100,000 or more, in violation of M.C.L.A. § 750.174(7), and
forgery, in violation of M.C.L.A. § 750.248. Petitioner is currently serving a
sentence of eight to twenty years’ imprisonment for the embezzlement conviction
and two to fourteen years’ imprisonment for the forgery conviction.
Petitioner raises a number of claims alleging the incorrect scoring of her
sentencing guidelines, the ineffective assistance of trial counsel, and the
ineffective assistance of appellate counsel. For the reasons stated below,
petitioner’s application for writ of habeas corpus is CONDITIONALLY GRANTED.

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I. Background
Petitioner pleaded guilty to the above offenses on November 18, 2010, in
the Wayne County Circuit Court. On February 17, 2011, petitioner was
sentenced 8-20 years imprisonment for the embezzlement conviction and 2-14
years imprisonment for the forgery conviction.
On March 3, 2011, petitioner filed a timely request for the appointment of
appellate counsel. Phillip Comorski was appointed as appellate counsel on
March 23, 2011. On August 14, 2011, appellate counsel visited petitioner in
prison. Petitioner informed appellate counsel that she wanted to challenge her
sentencing guidelines, but not the underlying plea. Appellate counsel informed
petitioner that he would contact her at a later date by mail.
In May of 2013, petitioner wrote to Mr. Comorski to ask for a copy of her
Sentencing Information Report to check on the guidelines herself, since it had
already been 1 ½ years since she had last heard from Mr. Comorski. Comorski
responded by sending petitioner a letter dated May 30, 2013, informing petitioner
that he had withdrawn from her case back in 2011 and another attorney had been
appointed, telling her that “inquiry should be directed to whomever was appointed
as substitute counsel.” Doc. # 1, Pg ID 39. This Court notes that Comorski failed
to file a brief with his motion to withdraw that was in conformity with the dictates
of Anders v. California, 386 U.S. 738 (1967).
The trial court granted appellate counsel’s motion to withdraw. However,
the trial court never appointed substitute appellate counsel, contrary to the
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representations made by Comorski in his letter to petitioner, dated May 30, 2013.1
The record reflects that on November 22, 2011, the circuit court entered an order
granting Comorski’s motion to withdraw as appellate counsel, but scratched out
the portion of Comorski’s presented order allowing for new appointed counsel.
People v. Houston, No. 10-6776-01-FH (Wayne County Circuit Court, November
22, 2011), Doc. # 6-1, Pg ID 151.
On August 14, 2013, petitioner filed a Halbert Motion2 for the appointment
of appellate counsel, which was denied in a form order. People v. Houston, No.
10-006776-01-FH (Wayne County Circuit Court, November 18, 2013).
On September 5, 2013, petitioner filed her original habeas petition for a writ
of habeas corpus. On October 16, 2013, this Court held the petition in abeyance
so that petitioner could return to the state courts to exhaust her claims.
On October 31, 2013, petitioner filed a motion for relief from judgment,
which was denied. People v. Houston, No. 10-6776-01-FH (Wayne County Circuit
Court, March 3, 2014), Doc. # 10-6, Pg ID 387. The Michigan appellate courts
denied petitioner leave to appeal. People v. Houston, No. 150403 (Mich.Ct.App.
Sept. 19, 2014); lv. den. 498 Mich. 852; 864 N.W.2d 564 (2015).
On July 16, 2015, petitioner filed an amended petition for writ of habeas
corpus, in which she sought relief on the same grounds that she raised in her
original habeas petition:
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See Petitioner’s Amended Habeas Petition, Doc. # 6-1 Pg ID 142.

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Halbert v. Michigan, 545 U.S. 605 (2005).
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I. Sentence is invalid due to an upward departure from the sentencing
guidelines range due to improper and incorrect PRV and OV scoring.
II. Ineffective assistance of counsel.
III. Ineffective assistance of appellate attorney.
The Court reopened the petition to the Court’s docket on September 25, 2015.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for
habeas cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs
when “a state court decision unreasonably applies the law of [the Supreme

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Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may
not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 410-11.
III. Discussion
The Court will first address petitioner’s third claim, because this is the
claim upon which the Court is granting habeas relief. Petitioner contends that
she was denied the assistance of counsel on appeal when the trial court
permitted her court-appointed appellate counsel to withdraw without filing an
Anders brief and without making any determination as to whether petitioner’s
case contained any viable issues as required by Anders v. California, 386 U.S.
738 (1967), nor was petitioner allowed to respond to Comorski’s request to
withdraw as counsel, and the trial court failed to appoint substitute appellate
counsel.
As part of the answer, respondent argues that the petition is time-barred
because it was filed beyond the one year limitations period.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one
year statute of limitations shall apply to an application for writ of habeas corpus by
a person in custody pursuant to a judgment of a state court. The one year statute
of limitation shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
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(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1).
Although not jurisdictional, the AEDPA’s one year limitations period
“effectively bars relief absent a showing that the petition’s untimeliness should
be excused based on equitable tolling and actual innocence.” See Akrawi v.
Booker, 572 F.3d 252, 260 (6th Cir. 2009). A petition for writ of habeas corpus
must be dismissed where it has not been filed within the one year statute of
limitations. See Holloway v. Jones, 166 F. Supp. 2d 1185, 1187 (E.D. Mich.
2001).
Petitioner was sentenced on February 17, 2011. At the time of petitioner’s
conviction, petitioner had twelve months after her sentence pursuant to M.C.R.
7.205(F)(3) to file a delayed application for leave to appeal. See e.g. Williams v.
Birkett, 670 F.3d 729, 731 (6th Cir. 2012).3 Petitioner had until February 17,
2012, to timely file her petition within the one year limitations period. Petitioner’s

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In September of 2011, M.C.R. 7.205(F)(3) was amended to require that
any delayed application for leave to appeal be filed with the Michigan Court of
Appeals within six months of the judgment of sentence. M.C.R. 7.205(F)(3).
Because petitioner was sentenced prior to that date, petitioner presumably would
have one year to file a delayed application for leave to appeal with the Michigan
Court of Appeals.
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original petition was signed and dated September 5, 2013, which was beyond
this date.4 Respondent argues that because the original petition and the
subsequent amended petition were filed beyond this date, the habeas
application is untimely.
Respondent ignores the fact that petitioner alleges in her third claim that
her appellate attorney, Phillip Comorski, failed to file an appeal on her behalf
when she requested that he do so. Petitioner further contends that she did not
discover that Mr. Comorski failed to file an appeal on her behalf until he sent her
a letter on May 30, 2013, in which he informed petitioner that he had withdrawn
as appellate counsel.5 Mr. Comorski claimed in his letter that he had sent
petitioner a notarized affidavit on August 16, 2011, and a follow-up letter on
September 21, 2011, and when he did not hear from petitioner, he moved to
withdraw as counsel. Petitioner sent Mr. Comorski a follow-up letter, in which
she indicated that, other than the letter from Mr. Comorski dated May 30, 2013,
she received no prior correspondence from him regarding the status of her
appeal. Petitioner specifically informed Mr. Comorski that she was unaware that
he had withdrawn as appellate counsel.6

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Under the prison mailbox rule, this Court assumes that petitioner filed her
habeas petition on September 5, 2013, the date that it was signed and dated.
See Towns v. U.S., 190 F.3d 468, 469 (6th Cir. 1999).
5

See Letter from Mr. Comorski to petitioner, dated May 30, 2013, attached
to the amended habeas petition. (Doc. # 6-1, Pg ID 142).
6

See Letter from Petitioner to Mr. Comorski (Doc. # 6-1, Pg ID 138).
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Respondent does not contest in his answer that petitioner did not learn
until May 30, 2013, that Mr. Comorski had been permitted to withdraw as
appellate counsel by the trial court nor does respondent claim that petitioner
learned about the status of her appeal from another source prior to that date.
The Court will therefore accept the factual allegations contained within the
habeas petition that petitioner did not learn until May 30, 2013, that appellate
counsel was permitted to withdraw as counsel and that substitute appellate
counsel was not appointed to represent petitioner, because the respondent has
not disputed this allegation in his answer. See Cristini v. McKee, 526 F.3d 888,
894, n. 1 (6th Cir. 2008)(“When a state’s return to a habeas corpus petition fails
to dispute the factual allegations contained within the habeas petition, it
essentially admits these allegations”).
Pursuant to 28 U.S.C. § 2244(d)(1)(D), the AEDPA’s one year limitations
period begins to run from the date upon which the factual predicate for a claim
could have been discovered through due diligence by the habeas petitioner. See
Ali v. Tennessee Board of Pardon and Paroles, 431 F.3d 896, 898 (6th Cir.
2005).
The factual predicate for petitioner’s ineffective assistance of appellate
counsel claim accrued under § 2244(d)(1)(D) on May 30, 2013, when petitioner
learned that her appellate counsel failed to file an appeal and had in fact
withdrawn from the case. See Granger v. Hurt, 90 F.App’x. 97, 99–100 (6th Cir.
2004). Petitioner would have had one year from this date, or until May 30, 2014,
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to timely file her petition for a writ of habeas corpus. Because the instant petition
was filed on September 5, 2013, the current petition is timely, at least with
respect to petitioner’s appellate counsel claim.
Petitioner contends that she was denied the assistance of counsel on
appeal when the trial court permitted her court-appointed appellate counsel to
withdraw without filing an Anders brief and without making any determination as
to whether petitioner’s case contained any viable issues as required by Anders
v. California, supra.
Respondent does not dispute in his answer that appellate counsel
withdrew without filing an Anders brief. The Court will therefore accept the
factual allegations contained within the habeas petition insofar as they are
consistent with the record, because the respondent has not disputed them. See
Dickens v. Jones, 203 F. Supp. 2d 354, 360 (E.D. Mich. 2002).
A defendant has an absolute right to be represented by counsel on his or
her first appeal from his or her conviction. Douglas v. California, 372 U.S. 353,
356 (1963); Penson v. Ohio, 488 U.S. 75, 83-83 (1988). The Sixth Amendment
right to the effective assistance of trial counsel has been extended to guarantee
the effective assistance of counsel on the first appeal by right. Evitts v. Lucey,
469 U.S. 387, 395-97 (1985).
In the present case, petitioner pleaded guilty. The Supreme Court has
ruled that a person who pleads guilty in Michigan has a right to the assistance of
appellate counsel on his or her first-tier appeal with the Michigan Court of
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Appeals. Halbert, 545 U.S. at 609–10; Keyes v. Renico, 2005 WL 2173212 (E.D.
Mich. September 2, 2005).
Appellate counsel was appointed to represent petitioner, but was
permitted to withdraw without first filing an Anders brief. Petitioner was not given
an opportunity to respond to appellate counsel’s motion to withdraw or to offer
any arguments that she had viable claims for appellate review.
In Anders, supra, at 744, the U.S. Supreme Court held that a courtappointed appellate counsel could move to withdraw, if, following “a
conscientious examination” of the case, appellate counsel determined that the
case was “wholly frivolous.” The Supreme Court indicated that any request to
withdraw should “be accompanied by a brief referring to anything in the record
that might arguably support the appeal.” Id. A copy of this brief should be
furnished to the defendant and time should be given to allow him to raise any
points that he chooses. Id. The Supreme Court indicated that the court, and not
counsel, should decide, after a full examination of all the proceedings, whether
the case is wholly frivolous. If the court makes such a finding, it may grant
counsel’s request to withdraw and dismiss the appeal insofar as federal
requirements are concerned. Id.
An appellate counsel’s failure to meet the requirements of Anders for
withdrawing from the representation of a criminal defendant is presumptively
prejudicial. See Allen v. United States, 938 F.2d 664, 666 (6th Cir. 1991); Freels
v. Hills, 843 F.2d 958, 962-63 (6th Cir. 1988); United States v. Anderson, 409 F.
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Supp. 2d 925, 926 (N.D. Ohio 2005). Appellate counsel’s failure in this case to
withdraw from petitioner’s appeal in compliance with the dictates of Anders
amounted to the constructive denial of appellate counsel for petitioner. This
Court concludes that petitioner was deprived of her right to the assistance of
appellate counsel and is entitled to the issuance of a writ of habeas corpus.
The remaining question for the Court is what the appropriate habeas
remedy would be in this case. A federal habeas court has broad discretion in
conditioning a judgment granting habeas relief. Hilton v. Braunskill, 481 U.S.
770, 775 (1987). 28 U.S.C. § 2243 authorizes federal courts to dispose of
habeas corpus matters “as law and justice require.” A federal court can grant a
conditional writ of habeas corpus in lieu of ordering a habeas petitioner’s
immediate release. See e.g. Salem v. Yukins, 414 F. Supp. 2d 687, 700 (E.D.
Mich. 2006). Federal district courts have broad discretion to fashion the
appropriate form of habeas relief and that discretion includes conditionally
granting a writ to pursue another appeal with the assistance of appellate
counsel. See Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 830 (E.D. Mich.
2004); modified on reconsideration, 340 F. Supp. 2d 773 (E.D. Mich. 2004).
The Court holds that the proper remedy would be to issue a writ of habeas
corpus, conditioned upon the Wayne County Circuit Court ordering new
appellate counsel be appointed to prepare and file an application for leave to
appeal.

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Because this Court’s conclusion that petitioner is entitled to habeas relief
on this claim is dispositive of the petition, the Court considers it unnecessary to
review petitioner’s other claims and declines to do so. See Satterlee v.
Wolfenbarger, 374 F. Supp. 2d 562, 567 (E.D. Mich. 2005); aff’d, 453 F.3d 362
(6th Cir. 2006). This Court expresses no opinion on the merits of the substantive
issues raised.
IV. ORDER
Accordingly, it is ORDERED that the petition for a writ of habeas corpus is
CONDITIONALLY GRANTED. It is further ORDERED that the Wayne County
Circuit Court shall order new appellate counsel be appointed and that appointed
counsel shall prepare and file an application for leave to appeal within fifty-six
days thereafter, or release the petitioner from unlawful custody, in which case
the petitioner’s convictions shall be vacated.

Dated: May 2, 2017

s/Arthur J. Tarnow
HON. ARTHUR J. TARNOW
UNITED STATES DISTRICT COURT

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